Introduction

Women require a wali (guardian) who ensures and secures their rights. The questi
on over here is whether the woman needs permission from her wali to marry or whe
ther she has the right to marry anyone whom she likes without permission. The Sh
afii, Maliki and Hanbali schools say that nikah entered into by a woman herself,
without the permission of her wali, is invalid and void. The Hanafi ruling on th
is matter is that a woman can enter into a marital contract by herself without p
ermission from her wali. The definition of such a woman will come later on and it
does not incorporate every woman.

The position of all the four schools in Ahl al-Sunnah wal Jamaa is that the rulin
gs of all four schools of thought are valid. However, the ghair muqallid accuse
the Ahnaf of following an opinion contrary to hadith. This allegation of theirs
is quite baseless and it is only due to their superficial knowledge of hadith as
well as of the ruling of the Hanafi school that they raise such allegations.

Hanafi Position
Before we go into the evidences, it is better to clarify what the Hanafi positio
n is regarding this matter. It is stated that an adult, sane woman, virgin or pr
eviously married, has the right to carry out her nikah without the permission of
her wali (guardian) to someone who is suitable. This step is to be used as a la
st resort when all other steps have been exhausted to obtain permission from the
father. It is stated in Imdad ul-Mufteen pg 440:
Nikah of a woman without permission of father is valid but if this woman marries
without permission in the absence of a valid legal reason, then she is sinful. F
irstly, it is a sin to displease the father without any valid cause. Secondly, t
o marry without permission of the wali is also a shameless act and not void of s
in.
Hence it is seen that a woman should marry herself off to someone suitable only
if it is extremely necessary. However, if the woman marries herself off to someo
ne who is unsuitable, then such a marriage has not taken place. It is stated in
Durr al-Mukhtar vol.2 pg 29:
If a woman marries a ghair kufu (unsuitable) man without the permission of her wal
i, then this is invalid.
The marriage will only be valid if the woman marries a kufu. If her wali, however
, gives permission for her to marry a non-kufu then the marriage will be valid.
This was the gist of the Hanafi position regarding marriage of an adult, sane, f
ree woman who is a virgin or previously married, without the walis permission.

Evidence for Maliki, Shafii and Hanbali schools

Qadhi Abul Waleed Muhammad bin Ahmed Ibn Rushd Maliki (rh), in Bidayatul Mujtahid
vol.2 pg. 6-7, writes:

Imam Malik (rh), in Ashhabs narration from him, said that there is no marriage wit
hout a guardian and that it (guardianship) is a condition of validity.
. . . .The fourth opinion is Maliks (rh), as derived from ibn al-Qasims narration
that its stipulation as a demand is Sunnah, but not Fardh. This is because it is
narrated from him that he used to view inheritance among parties married withou
t a guardian (as valid), and permitted an unchaste woman to appoint a man as her
guardian for her marriage, and he held as recommended that a deflowered woman p
resent a guardian who could contract on her behalf. Thus, guardianship for him i
s one of the complementary demands and not a condition for validity, as against
the statement of Maliks (rh) disciples from Baghdad, who consider it a condition
of validity and not that of perfection. The reason for their disagreement is the
absence of a verse or tradition that is apparent, not to say explicit, about th
e stipulation of guardianship as a condition of marriage.
In Sharh Muslim vol.9 pg 205 [Publication: Matba a Misriyya bil Azhar; 1929], Im
am Nawawi (rh) states:

There is disagreement in the issue of permission by wali for the nikah to be vali
d. Imam Malik (rh) and Imam Shafii (rh) have said the validity of the nikah rests
on the permission of the wali.
. . . .Imam Malik (rh) and Imam Shafii (rh) have derived their opinion from the h
adith la nikah ila biwali (There is no nikah without wali).
It is stated in al-Mughni vol.7 pg 5, by Ibn Qudama (rh):
Nikah without wali is not valid and a woman can neither do her own nikah nor do s
omeone elses nikah. A woman cannot make a non-wali her wali and if she does this
then such a nikah will be invalid. Umar, Ali, Ibn Masud, Abu Hurraira (rha) and Ayes
ha (raa) had the same view. Saeed bin Musaib, Hasan, Umar bin Abdul Aziz, Jabir bi
n Zaid Thawri, Ibn Abi Laila, Ibn Shabirma, Ibn al-Mubarak, Shafii, Ishaq and Abu
Ubaid also hold the same opinion. And it is narrated from Ibn Sireen, Qasim bin
Muhammad, Hasan bin Salih, Abu Salih and Abu Yusuf that nikah without permission
of wali is not correct and if she does the nikah then the validity depends on t
he permission of the wali.
. . . .And our evidence is the hadith where Prophet Muhammad
has said la nikah il
a biwali (There is no nikah without wali). Imam Ahmad (rh) and Yahya (rh) have de
clared this hadith to be sahih.
Evidence by the Hanafi School
The hadith la nikah ila biwali is reported in Jami Tirmidhi, Kitab an-Nikah, as fol
lows:
Abu Musa (ra) reported that Allahs Messenger
nsent of the) guardian is not there.

said, Marriage is not performed if (co

This hadith has also been reported in Ahmad, Abu Dawood, Ibn Majah and Darmi.
Maulana Shah Abdul Haq Muhaddith Dehalwi in Ashi-at al-Lamaaat, Sharh Mishkat vol.4
pg 286 writes:
There has been kalam (discussion) whether this hadith is sahih or not. Many aimma
hadith do not accept it to be sahih.
In Sharh Maani al-Athar vol.3 pg 17-18, Imam Tahawi writes:
The people of the first opinion (la nikah ila biwali) consider as evidence that w
hich has been narrated from Abu Ishaq through Israel. He narrates from Abu Barda
who narrates from his father that the Prophet Muhammad
said, no nikah without (c

onsent of) the wali.

So the evidence against them is that according to their rules it is not correct
to use this hadith as proof because those people who have stronger memory than I
srael, like Sufyan and Shubah, have narrated it munqatian (broken) from Abu Ishaq.
. . . .If they say Abu Awanah narrated this hadith marfuan like Israel, Abu Awanah
narrates from Ishaq who narrates from Abu Burdah who narrates from Abu Musa that
, the Prophet Muhammad
said, no nikah without (consent of) wali.
Then we will say that this hadith has been narrated through Abu Awana like you ha
ve said but we have checked the origin of the hadith and it is narrated from Abu
Awana from Israel and he narrates it from Abu Ishaq and thus the narration of Ab
u Awana also returns to Israel.
Mualla bin Mansoor Razi says that Abu Awana narrated to me from Abu Ishaq through
Israel from his sanad similar to this.
Hence this negates that Abu Awana had anything from Abu Ishaq directly.
Dr. Maulana Fadhal Ahmed, in his commentary on the English translation of Jami Ti
rmidhi vol.1 pg 403 has noted:
As for the hadith of Abu Musa (ra) it is not a worthy piece of evidence because t
here is a contradiction in its reporting and connection. Imam Tirmidhi (rh) has
himself confirmed this. Hence, the correct position is that this hadith is mursa
l, as Imam Tahawi also confirms, while Ibn Hajr Asqalani (rh) said that it is no
t correct to deduce from it.
A slight variant of this hadith is reported in Ibn Majah as follows:

The prophet said, There is no nikah without (the permission of) the wali, and in th
e narration of Ayesha it is added, the sultan is the wali of the person who has no
wali.
Abul Hasan Muhammad bin Abdul Hadi as-Sanadee, in Sunan Ibn Majah bi Sharh as-Sa
nadee wa Misbah az-Zujajah fi Zawaid Ibn Majah vol.2 pg 428 [Publication: Darul M
arifah, Beirut; 1996], comments on this hadith:
According to al-Zawaid, its isnad contains in it al-Hajjaj who is Ibn Artaah. He i
s mudallis. He has transmitted it through anana and he has not heard from Ikrama. H
e transmits from Ikrama on the authority of Dawood bin al-Husain. Imam Ahmad held
this opinion. Hajjaj did not hear from Zuhri. Abbad bin Zuhri said this. Sulaima
n bin Musa is in agreement with him in it and he is reliable. Zuhri reported Ayes
ha (raa) on the authority of Urwa as saying the word: Any woman who marries withou
t the consent of her guardian (her marriage) is invalid, as the scholars of sunan
transmitted it. I said: The scholars and devotees of hadith have criticized this
isnad also.
Another strange point is observed by Maulana Muhammad Qasim Amin, in his brief c
ommentary of the Urdu translation of Sunan Ibn Majah, where he writes that Shafii
generally do not accept Hajaj bin Artaah and Ibn Luhaiah but in this case they a
re using their narration as evidence. He further adds in, Sunan Ibn Majah vol.2
pg 31:
Some hadith experts have stated that three ahadith are not proven to be from the
Prophet Muhammad and one of them is the hadith la nikah ila biwali and this is why
it has not been recorded in the Sahihain; there is extreme ikhtilaf in the hadit
h.
Allama Badruddin al-Ainee, in Umdatul Qari, vol.20 pg 165 [Publisher: Darul Kutub
al-ilmiyyah; 2001] comments on a similar hadith narrated from Abu Huraira:

As for the hadith of Abu Hurairah, al-Mugheerah ibn Musa is in the chain of narra
tors about whom Bukhari said, munkar al-hadith and Ibn Hiban said, he narrates from
people of trust that which does not resemble confirmed hadith, so he is not take
n as hujjah anymore.
Further, these ahadith cannot be taken to be general and apparent in meaning as
they will then act as evidence against those who oppose the Ahnaf. As Imam Shafii
(rh) deems the nikah of an adult man without wali to be permissible, these ahad
ith will go against Imam Shafii (rh) as they do not mention whether the condition
is restricted to males or females. Hence if the apparent and general meaning is
taken then the nikah of an adult male will also be void without a wali, thus go
ing against the opinion of Imam Shafii.
The hadith of Ayesha (ra) is reported in the following words in Jami Tirmidhi:
Ayesha (raa) reported that Allahs Messenger
said, If any woman marries without the c
onsent of her guardian then her marriage is void. Her marriage is void. Her marr
iage is void. If he cohabits with her then for her is the dower as the man enjoy
ed her. And if her awliya dispute with each other then the ruler is the wali of
the one who has no wali.
Mufti Ahmed Yar Khan Naeemi, in Miratul Manajih vol. 5 pg 48 writes:
This hadith is daeef and troubled just like the one preceding it. . . .Ibn Jareej
says, I asked Ibn Shuhab about this hadith and he denied it (Mirqat).
Maulana Manzoor Ahmed, in Fadhl al-Mabud vol. 3 pg 285, writes:
Zuhri denied this hadith
Maulana Mohammad Aqil, in Ad-Durrul Mandhud vol.4 pg 35, says:
One of the replies given in regards to this hadith is that its daeef and it has Su
laiman bin Musa in the chain of narrators and he is weak. Bukhari said it was we
ak and Nasai said something (wrong) is in this hadith.
However, we will take all these ahadith to be of a sound chain. Yet, as explaine
d previously, their apparent meaning cannot be taken. Even in this hadith, note
that it mentions, if the man cohabits with the woman then she will get the dower
. Dowry is something that is given to the wife. If the nikah would have been inv
alid, like how the opposition of the Ahnaf state, then this is a case of zina (f
ornication). And zina cannot be legalized by paying dowry to the woman. Thus it
is obvious that her marriage is batil (void) cannot be taken literally to mean tha
t the nikah never took place.
It is also important to note that the hadith which the opposition quotes from Aye
sha (raa) is contrary to her action. Ghulam Rasool Saeedi, in Sharh Muslim vol. 3
pg 828, quotes a hadith from Musannaf Abi Sheeba which is as follows:
Qasim bin Muhammad says that Ayesha (raa) did the nikah of the daughter of Abdur Ra
hman bin Abi Bakr with Mundhir bin al-Zubair. At that time Abdur Rahman was not p
resent. When he came, he became angry and said, O slaves of Allah! Is it done to
a person like me that his daughter is married without his consultation? Ayesha go
t angry and asked, do you dislike Mundhir?
A variant of this hadith is also recorded in Sharh Maani al-Athar by different ch
ains, where Mundhir stated that Abdur Rahman has the authority and Abdur Rahman sa
id that he will not cancel anything which has been decided by Ayesha (raa).
In light of this one can come up with two conclusions. The first being, that Ayes

ha (raa) did not consider the hadith Her marriage is void. Her marriage is void.
Her marriage is void, to be sahih and thus she acted opposite to it as seen in th
e hadith above. In this case, the former hadith cannot be used as evidence. The
second being, that she does hold the former hadith to be true but the sense she
implies is not what the opposition understand.
Allama Badruddin al-Ainee, in Umdatul Qari vol.20 pg 163, observes:
But its meaning refers to kamal (perfection) like in the hadith of the prophet
ut prayer when he says no prayer (is valid) unless in a masjid.

abo

Mufti Saeed Ahmed Palanpuri, in Tuhfatul Almaee vol.3 pg 518 adds:

Imam Azam says that this hadith is to threaten against something and in such ahadi
th the deficient is declared as banned. This is seen, for example, in the hadith
in Kitab at-Tahara where it is stated that a man who sleeps with a menstruating
woman or enters his wife from behind or goes to soothsayer to ask about things
of ghaib has rejected the deen which has been revealed onto Muhammad . This hadit
h is to threaten and in it deficient iman has been talked about as being banned.
Hence no one will do takfir of such a person. Over here also, deficiency in nik
ah has been expressed as banned. And the evidence (daleel) is that the prophet
h
as said that such a woman married without a wali, with whom the husband has coha
bited, will get the dowry.
. . . .And the meaning of the hadith is that if a woman does her nikah without c
onsent of wali, then if the wali objects and the judge cancels the nikah, then i
f is wajib on the husband because the nikah was correct and the husband benefitt
ed physically from his wife after a proper nikah. Thus dowry becomes wajib.
Moreover, in their apparent meaning, these ahadith also contradict the Quranic ve
rse:
fala taAAduloohunna an yankihna azwajahunna
Do not prevent them from marrying their husbands - [Quran 2:232]
This verse is evidence for the Hanafi as if attributes the right of nikah to the
women and also that the wali has no right to interfere in the matter of the wom
an. However, people who oppose Hanafi say this verse is evidence for their stand
as the Quran forbids something to the wali and something can only be forbidden f
or someone who has authority over it.
Mufti Taqi Uthmani (db) responds to this in Dars e Tirmidhi vol.3 pg 377:
The answer is that Sharii or legal opposition by the wali is not referred to in th
is verse. In fact, ethical and social pressure is referred to here. Hence this v
erse was revealed at the time of the matter of Maqil bin Yasaar (ra) who was stop
ping his sister from marrying her previous husband. This subject of the verse is
clarified by attributing
to the women.
The second verse which the Hanafi use as evidence is as follows:
faitha balaghna ajalahunna fala junaha AAalaykum feema faAAalna fee anfusihinna
bialmaAAroofi
When they have fulfilled their term, there is no blame on you if they dispose of
themselves in a just and reasonable manner. - [Quran 2:234]
Mufti Muhammad Aashiq Ilahi, in Tafsir Anwar ul Bayan vol.1 pg 297, writes:
Once her iddah has expired, she is at liberty to do as she pleases on condition th

at she conforms with the Shariah. In this way, if she wishes to remarry, none can
stop her.
The Quran also mentions:
Fain tallaqaha fala tahillu lahu min baAAdu hatta tankiha zawjan ghayrahu
Thereafter, if he divorces her, she shall no longer remain lawful for him unless
she marries a man other than him. - [Quran 2:230]
Mufti Taqi Uthmani (db), in Dars e Tirmidhi vol.3 pg 377, writes:
This verse also attributes marriage to the woman which is evidence by Ishaaratun N
ass that woman can do her nikah.
The opposition cites a verse in the Quran which is as follows:
Waankihoo alayama minkum
Arrange the marriage of the spouseless among you - [Qur an 24:32]

They say that the awliya are addressed in this verse and thus conclude that wome
n do not have the right to marry without permission of the awliya.
In the footnotes of Dars e Tirmidhi (by Mufti Taqi Uthmani) vol.3 pg 375, it is
explained:
From this verse Allama Qurtubi Maliki (rh), in his tafsir and other muhaqqiqeen h
ave used this to support the view of the majority.
But the answer to this is that Ayami is the plural of Aym and it is referred to some
one who has no spouse whether it is a male or a female just as Allama Qurtubi (r
h) has mentioned. In light of this, the verse would thus mean that it is preferr
ed for both men and women that they should not take steps for nikah without wali
.
As for the issue that if someone does do it without the wali then what is the hu
km, the verse remains silent regarding it.
Then if both adult males and females come under the meaning of Ayami then as the n
ikah of a man who enters in it without wali is considered to be valid, similarly
it would be valid if a woman does it without a wali.
Apart from the mentioned evidence, the Ahnaf derive their evidence from another
hadith which appears in Sahih Muslim, in Kitab an-Nikah, and is as follows:
Ibn Abbas (ra) reported Allah s Messenger
as saying: An unmarried woman (al-Aym)
has more right to her person than her guardian. And a virgin should also be cons
ulted, and her silence implies her consent.

There is a disagreement among the scholars regarding the meaning of al-Aym. Its ba
sic meaning is an unmarried woman. The disagreement lies in whether it means a pre
viously married woman only or does it include an unmarried virgin (bikr) as well
. Some have considered it to mean thaib and these are the people who say a woman c
annot do nikah without permission of wali. The others have said al-Aym includes a
woman who was never married. This latter meaning is confirmed by the ahl al-lugh
ah. Imam Nawawi (rh) confirms this in his Sharh Muslim vol.9 pg 203 and adds tha
t this was said by Ibrahim al-Harbi and Ismaeel al-Qadhi and others.
Allama Shabbir Ahmed Uthmani, in Ilaa us-Sunan, writes:

If one asks why the prophet

mentioned bikr again if Aym was supposed to include i
t, I say, bikr was mentioned so that one does not think bikr is not included bec
ause she is shy, so the prophet
mentioned her to confirm hukm on her. So this is
takhsees (specialization) after tameem (generalization) to show difference betwe
en the 2 permissions.
In Sahih Muslim other variants of this hadith are also transmitted where the wor
d thaib is used. Thus those opposing the Hanafi opinion say al-Aym means thaib.
Mufti Taqi Uthmani (db), in Dars e Tirmidhi vol.3 pg 379, explains:
If we accept the tafsir of Imam Shafii and state that Aym means thaib only, even then
the argument agrees and supports the Hanafi view. This is because it at least pr
oves that a woman who has been previously married (thaib) has more rights on her
nikah than the wali. (Imam Shafii says thaib cannot enter into contract by herse
lf) - text in parenthesis added
In Muwatta Imam Malik, Kitab at-Talaq (Chapter: The iddah of the widow if she is
pregnant), a hadith appears as follows:
Umm Salama said, Subaia al-Aslamiyya had delivered after her husbands death by half
a month. Two men asked to marry her. One was young, and the other was old. She p
referred the young man. The old man said, You are not free yet (to marry). Her fam
ily was away, and he hoped that when her family would come, they may prefer him
over the other man. She came to the Messenger of Allah and he said, You are free
(of the iddah), marry whoever you desire.
This hadith supports the view of the Ahnaf and the authority to marry was clearl
y given to the woman by Prophet Muhammad .
Mufti Taqi Uthmani (db), in Dars e Tirmidhi vol.3 pg 378, lists a number of ahad
ith to support the Hanafi view:
There is a hadith reported in Muwatta Imam Malik (Kitab an-Nikah; Chapter: What w
as said in the dower and un-returnable gifts) and Sahih Bukhari (Kitab an-Nikah;
Chapter of the woman who gives herself in marriage to salih man), which states
that a woman came to Prophet Muhammad and said, Messenger of Allah! I have given m
yself to you. The prophet
maintained silence and the woman stood there for long.
Then a man got up and said, Messenger of Allah, marry her to me if you have no ne
ed of her. The prophet
asked him what dowry he can afford to give after which he
said, I have married her to you for what you know of the Quran.
At this time there was no wali of the woman present.
It is mentioned in Tahawi (Kitab an-Nikah;
uthority), Umm Salmah narrates that after
f Allah came and proposed to me. I said,
o not have any wali present. He said, No
ill dislike your marriage with me. So Umm
d do my nikah with the Messenger of Allah

Chapter of marriage without wali of a

the death of Abu Salmah the Messenger o
O Messenger of Allah! At this moment I d
wali of yours, whether present or away, w
Salmah said to her son, O Umar! Get up an
. Hence, he did their nikah.

This nikah also took place without any wali as Umar bin Abi Salmah was a minor an
d hence it was not proper according to shari ah for him to carry out the nikah.
This was just a formality and to say that this nikah was carried out under the u
niversal guardianship of the prophet , then this is something farfetched because
such a guardianship is in effect when guardians from among the family are not al
ive.

Further he states:

There is a narration in Kanz ul Ummal (vol.12 pg 532) that Ali (ra) used to tell pe
ople nikah without wali is impermissible but if such a nikah would take place th
en he would declare it valid.
(And there is another narration in Kanz ul Ummal vol. 12 pg 530) from Saeed bin al
-Musaib who said that Umar ibn al-Khattab (ra) said, the woman does not get marrie
d off unless with the permission of her wali or permission of someone responsibl
e((
good judgment or the sultan.
So in this way he permitted the nikah without the permission of a wali, provided
someone of sound judgment or responsibility from among the relatives allow even
if the person is not a wali.
Ghulam Rasool Saeedi, in Sharh Muslim vol.3 pg 828 mentions a narration from Musa
nnaf Abi Sheeba:
It has been narrated from Ali (ra) that he validated the nikah of a woman whose ni
kah mother married her off with her agreement without consent of any wali.
He further writes, while quoting from Musannaf Abdul Razzaq:
Muamar says, I asked Zuhri the ruling on someone marrying without a wali. He said t
hat if it is done in kufu then it is valid.
When asked, What are the basic requirements for Islamic Nikah, Maulana Ahmed Mirpu
ri (rh) who was one of the leading scholars of the ghair muqalid, replies, in Is
lamic Verdicts (Fatawa Sirat-e-Mustaqeem) pg 228:
We have the following conditions for Nikah: 1) Acceptance from both sides, 2) Two
witnesses, 3) Mahr (dowry). Basically, these are the requirements for a nikah.
In some cases, the brides attorney is also conditional, and is recommended in som
e cases. Proper conduct of the ceremony, the khutbah and explanation of the duti
es after marriage, are all considered as Sunnah but not a condition.
While many ghair muqalid try to criticize the Hanafi regarding their ruling on t
his issue, one of their scholars has given a ruling similar to the Hanafi opinio
n.
Conclusion
It is thus seen that the position of Imam Abu Hanifa (rh) is by far the stronges
t position in this matter. There is also a matter of Qiyas here whereby the Ahna
f say that just as an adult man can utilize his property may marry properly by w
ord, so also a woman who can utilize her property may marry by her word. Hence a
s she has right over her property she has right over her person. For the Ahnaf,
ahadith like la nikah ila biwali hold the meaning that the compulsion for the pres
ence of wali is for immature or slave women and not for adult, sane women. And i
n light of the evidence given to support the Hanafi view, one cannot interpret t
he narrations used by the opposition in any other way.